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Post Poland and the EU Conflict
Created by John Eipper on 10/23/21 12:18 PM

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Poland and the EU Conflict (José Ignacio Soler, Venezuela, 10/23/21 12:18 pm)

In the context of Brexit, there has been much debate on WAIS about the future of the EU and its strength and solidarity to face the political and economic challenges that it will surely have to solve. 

In these debates, I have always argued that one of the main weaknesses of the EU will continue to be the extent to which the member states will be willing to give up, partially or totally, their sovereignty vis-à-vis the supranational institutions of the Union. This matter, which should have been clarified from the moment the countries signed the accession treaty, has not been fully resolved. Brexit was indeed the clear result of this fundamental conflict between national sovereignty and the Union's rule of law, apart from the fact that the motivations for proposing it to the British public were manipulated, false and misleading in many respects. 

The current conflict regarding Poland and Hungary, albeit with less media impact, has once again exposed the issue that now threatens another possible split of a member state--PolExit. The relationship of the sovereignty of each member state and the EU will need greater clarification to move forward. The Union can seize the opportunity of the Polish crisis to do just this. I do not believe that this PolExit will happen, yet I would like to share my reflections on the matter.

In my view, there are three democratic and practical principles or values that are at stake and must be resolved in this legal and political crisis within the EU, taking advantage of the current conflict with Poland: 

1.  The principle of judicial independence.

2.  The principle of the hierarchy or supremacy of the laws, or of the European courts, over the national laws of the member states.

3.  The principle of mutual recognition of legal decisions of the member states. 

As has been widely disclosed, the conflict between Poland and the EU is the consequence of Poland's refusal to apply the European judgments condemning the latest reforms of its judicial system, which do not guarantee the independence of the judges. 

This dilemma also affects Spain, although for now the political conflict has not spread across the European sphere. The independence of the judiciary is not only a fundamental and foundational value of the EU, it is undoubtedly a basic value of all democracies. But apparently in some countries of the Union, it is still not completely guaranteed. 

In Spain, for example, the appointment of judges depends on the political pacts that are made in congress. A current debate is whether judges should be elected by the judicial institution itself and on their own merits, individually, or as actually happens, in congress through political pacts. Undoubtedly, with the second option, the appointments and their judicial decisions will frequently be affected by political bias, and there is no assurance of independence. This is also the case for the appointment of the Attorney General by the current government, and other important institutions fundamentals for democracies. 

This problem is similar in Poland, with the judicial reforms recently approved by the government and the congress. Indeed, the matter has now been aggravated because its Supreme Court of Justice has decided that Polish laws have supremacy over European laws, and therefore the reforms approved and condemned by the EU challenge and contradict the two principles of judicial independence and the supremacy of EU jurisdiction. 

The Supreme Court of the Union, as a supranational entity, is supposed to be the arbitrator and main judge in litigation, conflicts, legal interpretations, etc., in the national spheres of the member states and among themselves.  Member states are supposed to comply by its decisions. 

However, the principle of legal supremacy of the EU over national laws is based on the accepted delegation of explicit powers by the different countries, through the Maastricht and Lisbon Treaties. I do not know in detail what those explicit powers are, but I understand that the Union assumed delegations in the fields of social policy, consumer protection, territorial cohesion, environment, energy, tourism, civil protection, economic and monetary policy, asylum, migration and border control, among other matters.  Apparently it was not clear regarding internal security aspects of the members and some other aspects, such as sports and the appointment of the judges, which Poland alleges are not included in the treaties. 

I do not know for certain, but these allegations are possible to argue, as is common in almost all legal instruments, because there is always room for uncertainty, gray areas that allow jurists to interpret and maneuver for the benefit of their arguments. 

Regarding the third principle, about the mutual recognition between members of their own judicial decisions, there is also a great weakness in the legal system of the Union.  The homologation of the national laws of all the member states would be one solution to this issue, perhaps a Utopian one, but to accept and respect the fully practical and real application of the principle of mutual recognition of judicial decisions adopted by a member state, would be more simple and only requires the willingness of any other member state, as if they were their own. 

However, in practice, such a recognition requires that crimes judged in one member state be recognized, or at least interpreted in a similar fashion, in other national laws. The problem in homogenizing different bodies of laws, explains the difficulty that exists, for example, to extradite fugitives who take advantage of the right of free movement, or to refugees in countries of the EU  where crimes for which they have been claimed or tried are not recognized elsewhere. 

This is the case, for example, of some Catalan fugitives, political leaders who promoted the declaration of independence, unilaterally and illegally.  This is codified differently in Spain than in countries such as Germany or Belgium, for example, and that makes extradition impossible from those countries. 

Returning to Poland, the EU is now studying what measures it can exert to resolve the crisis and force it to accept the legal principles that have been mentioned above. In my opinion, there is an impasse that is difficult to overcome, but as I pointed out before I doubt that the final result will be PolExit.

JE comments:  Or...could Poland be expelled?  de-Poleization?  Poland has far more to lose than the EU does if there's a divorce.  No country has benefited more from EU largesse, or at least this was the case in the most recent data I found, from 2017:

https://www.bbc.com/news/uk-politics-48256318

Nacho, you've sent a fine essay.  The question remains:  can Brussels do anything to bring Poland in line?  I believe the options are few to none, and the Poles know this.

 


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